Harvardmen Head Historic Bar Study of Effect of Press on Fair Trials

"Ours is the greatest newspaper reading population in the world;...Every great and startling crime is paraded in their columns, with all the minuteness of detail that an eager competitor for public favor can supply.... In the case of a particularly audacious crime that has been widely discussed it is utterly impossible that any man of common intelligence, and not wholly secluded from society, should be found, who had not formed an opinion."

So reads an excerpt from Trial by Jury in New York, first published 120 years ago. The conflict between free press and fair trial has been around a long time.

But nothing much was done about it. At least not until the members of the Warren Commission became outraged by the prejudicial newspaper coverage, on a nation-wide scale, of Lee Harvey Oswald, accused as the assassin of President Kennedy. By December of 1964, the American Bar Association (ABA) had organized a special committee to do something about it.

Three weeks ago, the Committee on Free Press and Fair Trial published a thick report which recommended the establishment of specific minimum standards in the administration of criminal justice. The proposals seem harsh. They place limitations on statements made by attorneys and police involved in the case, and on the copy a newspaper may publish during the trial.

Despite the meticulous preparation of the report, policemen, attorneys, and newsmen have reacted with suspicion, indignation, and frothing anger. Newsmen have compared the ABA's action to the American Medical Association's interminable lobby against medicare.

But the members of the Committee are not protecting a selfish interest by wishing to limit freedom of the press. The eleven members include three former ABA presidents, two law school deans, two former U.S. attorney generals, and a Supreme Court justice. A wild, wide-roaming press probably exposes more criminals than a press limited by their proposals; the former would be more in their inter- est when they serve as criminal prosecutors.

Instead, the report represents an attempt to live with two constitutional rights: free press and fair trial. "We agreed in Committee that we should not be a party to any witch hunt," said Paul C. Reardon '32, Justice of the Massachusetts Supreme Judicial Court and chairman of the Committee. "We were constituted rather to bring as detached and impartial a view as possible to what we were doing. We were considering the delicate balance between two ancient rights and we felt we should maintain a pure judicial approach to the accommodation between them."

Under Reporter David L. Shapiro, a professor at the Law School, the research staff, composed entirely of Harvard Law students, began finding out all there was to know about free press-fair trial conflict. "The subject has never been more thoroughly studied at any other time," Reardon attested.

This study included a comprehensive review of all known cases reported in English, not only in the United States, but in the entire English-speaking world. One assistant spent the summer of 1965 in England, interviewing judges, prosecutors, barristers, and press representatives.

23 Cities

Most of the research in the United States was conducted by one full-time assistant over ten months. He spent five weeks in three carefully-chosen cities: Pittsfield, Mass.; Newark, N.J.; and San Francisco, conducing personal interviews with police officials, prosecutors, defense attorneys, judges, and newsmen. In each city, the crime coverage of the newspaper with the largest circulation was studied.

Another 20 cities were studied but not personally visited. They were selected at random from cities of over 100,000 people. Reporter Shapiro and the full-time assistant subscribed to each city's leading newspaper for one month and mailed questionnaires to the same groups that were interviewed in the three intensively-studied cities. Answers to the questionnaires showed that most newspapers today have a free hand in reporting criminal proceedings.

Throughout the year of research, Shapiro found that "responsibility for the threat to a fair trial could be placed not on the media themselves, but rather on an attorney or public official who made an ill-timed public statement of alleged fact." This conclusion served as a basis for the tone of the Committee's final report. "Our report does not bear heavily on the press," chairman Reardon maintains, "but is mainly directed to the bench, bar, and law enforcement agencies. When we began our investigation, the press rightly raised the question 'Why don't they clean their own house?' This report does, I suggest, just that."

A sense of individual responsibility to an amorphous "public" pervades the Committee's entire report. Paul C. Reardon was the perfect man to direct such an undertaking. A former Justice of the state Superior Court, he stands above Massachusetts politics as a dedicated public servant, almost a modern philosopher-king.

The sense of responsibility so evident in the Report has been a point of contention for Justice Reardon since his college years. As the senior class orator in June, 1932, he warned his classmates in Sanders Theatre: "The existence of democracy is predicated in the interest of the citizen in his government. The last decade has witnessed the spectacle of a people intent on self-gain. That an apathy, a lack of interest and knowledge, a shirking of the plain duty to democracy on the part of the better educated class has been one cause, there is little doubt."

There is no doubt also that when Paul Reardon resigned as managing partner of a leading Boston law firm in 1954 for the job of special assistant to Governor Christian A. Herter, he was finally doing what he had always considered his calling. "There is no satisfaction I know of like getting into public work, even if it is controversial."

With his appointment to the State Supreme Court in 1962, he continued his diatribe against public laxity. He scored "that approach to problems of democracy indulged in by so many suburbanites who conclude in their own minds that they have fully discharged their civic duties by immersing themselves in the affairs of those lovely towns in which they live, in complete forgetfulness of their larger responsibilities. We live in an age of relaxation. Something has happened to our morale and our outlook on law and government."

Judge Reardon, now 56 years old, is still alarmed; he thinks of his work with the ABA Committee as an effort to stop the trend he has long seen in American government. "We are moving away from the rule of law. I remember quite well what I said in Sanders Theatre that night. I would say it is still true. Our daily living has become too complex. Professionally trained people are moving away from involvement in government. Bound up in intense specialties, they lose sight of the larger object of what is good for our democracy. What we need, perhaps, is mass training in community needs."

Reardon's partner in directing the investigation was another man of public dedication. David Shapiro, graduate of Harvard Law School and a former clerk for Justice John Harlan, left private practice after five years "because I felt there just wasn't any challenge left in it." As Committee Reporter, he acted as liaison between the formal committee and the research staff. During the period of intensive research from December 1964 to October 1965, he sent out periodic communications to the Committee members, keeping them up to date. "We would send out changes [in the conclusions] and they would send me in their criticism. Some did more than others, but they all had their oars in."

By December of 1965, Shapiro had